Book review: Gun case’s broader context

Posted Sat, January 26th, 2008 6:50 pm by Lyle Denniston

The Supreme Court’s move into the center of one of the nation’s most hotly contested culture wars — over gun rights and the Second Amendment — is already historic in itself, and probably will become more so as it proceeds to a decision. But the case could be historic for another reason: it has a prominent place on an agenda for some fundamental shifts in American constitutional dogma. The gun case (District of Columbia v. Heller, 07-290) thus might be seen as an opening shot in a constitutional revolution.

The rise over the past couple of decades of a professionally gifted cadre of litigators, highly motivated to advance conservative causes, has brought serious questioning of long-held understandings or assumptions about the Nation’s fundamental law. This, one might say, is the constitutional legacy of the “Reagan revolution.”

It is a far more ambitious project than may be widely recognized. If it ultimately were to succeed, Congress’ power to spend under the General Welfare Clause would be severely curtailed, economic populism — freedom, especially, for small merchants from pesky government rules — would have a new birth, the bundle of ownership rights in property would expand markedly, the power at all levels of government to intervene to advance progressive social causes would be shrunken considerably — just as a few examples.

This project is soon to have its own manifesto: a new book co-authored by two prominent figures in the libertarian community, one of whom, Robert A. Levy, happens to be the prime mover behind the challenge to the D.C. handgun control law. Levy, a senior constitutional fellow at the Cato Institute, is joined here by William “Chip” Mellor, president and general counsel of the Institute for Justice.

Their book (a bit flippantly titled for such a serious project) is The Dirty Dozen, scheduled for publication May 1 as a Sentinel book (Sentinel is “a dedicated conservative imprint within Penguin Group”). Its subtitle more accurately describes the work: “How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.” It has a forward by Chicago law professor Richard A. Epstein, who points out that, in one place, the authors have gathered what he deems “the worst” of the Supreme Court’s modern decisions.

There are a couple of “naturals” in the Levy-Mellor list (which generally begins with the New Deal and runs through 2005). One, of course, is U.S. v. Miller, the 1939 decision that is the Supreme Court’s most recent analysis of the Second Amendment and the “right to keep and bear arms.” Although quite an opaque decision, Miller has led a lot of people (and legislatures) to believe that the Amendment does not protect a private right to have guns — the very proposition that, through Levy’s own efforts, is now being tested in the Heller case.

Another obvious entry on this black list is Kelo v. City of New London, the widely-assailed 2005 decision that allowed a city government to take unblighted private residential property and turn it over to a private developer for a civic improvement project that would provide new tax revenue and jobs — a case closely identified with the Institute for Justice’s sustained campaign against what it regards as “eminent domain” abuses.

But there also are some mild surprises here: for example, the stirring defense of the rights of Tina Bennis, the Michigan woman’s whose share (with her husband) in the ownership of a used car was taken away because the husband used the car as the scene of a sex encounter with a prostitute — a forfeiture upheld by the Supreme Court in Bennis v. Michigan (1996). Given libertarians’ devotion to property rights (a nearly constant them of this book), this case seems to belong on this list, but, more importantly, it has a special sting as a wholesale assault on criminal forfeiture doctrine, well beyond Tina Bennis’ loss.

It is also somewhat surprising to find here a defense of the rights of Jose Padilla, the U.S. citizen who was captured in Chicago as a terrorist suspect, and was later held for years in a Navy brig in Charleston, S.C. His fate is lamented as part of a chapter titled “Civil Liberties versus National Security,” focusing primarily on the Japanese internment cases from the World War II era.

The book definitely appears to be tilting at windmills when it takes on government taxing and spending power under the General Welfare Clause, particularly targeting the 1937 decision in Helvering v. Davis, upholding the constitutionality of Social Security. No one is going to anticipate Helvering‘s demise. But this chapter is entirely true to the authors’ concept of limited government, and its presence on the list suggests how bold this project is in its ultimate ambition.

The book is an easy read, and it is a very informative primer on some long-neglected cases. Each chapter begins with a discussion of the constitutional issue at stake (with the language of the Constitution on the point spelled out), followed by the facts of the key case or cases, the critique (“Where Did the Court Go Wrong?), and concluding with implications for the present and future.

The book closes with a chapter on judicial philosophy — not all of which will be comfortable reading for conservatives. There are two postscripts on why Roe v. Wade and Bush v. Gore do not make their list.

The authors are not so naive as to suggest that they will see, in their lifetimes, the overruling of all of these “worst” cases. In essence, that would be to undo virtually the entire modern “regulatory state.” But, on the other hand, they do not concede it is beyond imagining; look, for example, at what may happen in District of Columbia v. Heller.

The book could well become a document of some import during this year’s presidential election campaign, if it should turn out that the voting public (and the candidates) take any interest in the kind of judicial philosophy that they want to see pursued in future appointments to the Supreme Court.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.